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tv   [untitled]    October 16, 2012 12:30am-1:00am PDT

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anything other than the burden issue, the presumption that is different from the two sets of procedures? >> not significantly. the hearing most likely will follow in the same way. >> they are both public and the standard and evidentiary issues and the procedure. seem to be the same. >> the role of the commission/staff is different. >> that is true. the role of the executive director and staff would be very different. >> the comment i wanted to add at the outset was about timing. i agree with you that we have had very helpful conversations with the task force through two cycles of review. i wish we had been able to get comments on this written draft as we get closer and closer we
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think to something that resolves a number of these issues. but am i correct, we can go back and amend if after the task force comes together again and is able to begin meeting. if they reviewed it and had suggestions we could at that time take them? >> that is my understanding, yes. >> so from my part, it seems in the balance between waiting even further for a process. that everyone is eager to move forward so we can address these matters. than it would be better to act on these and accept any clarification when the task force is able to give it. at that point we may have experience under our belt as well to see how they operate. but at least we would be able to get going. and address some of these. and that is a major point that
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the task force has been making to us. and it's something that i for one would appreciate the ability to feel that we had. we are establishing some momentum, taking the good suggestions we have had and refine them. and seeing each other's perspectives and go forward. and recognizing that they later may have additional thoughts when they are able to operate. thank you. >> any other comments from the commissioners? on that? general comments? i think those are good points. and certainly we would be open to amending this like we are with anything that isn't working as intended. for decision point 1-1, i had no
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particular problem with that section. did anyone have amendments to 1-1? >> you are seeking motions on each one? >> no, we are not seeking motions. we will take a motion on all decision points one. 1-2? i had a question. this is not a criminal matter; right. so is not guilty of language an m? seemed intentionally inappropriate. probably should say, has not committed.
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>> in mitigating information? >> exploratory. >> you are correct, it's not criminal and can change that. >> yeah, change to has not committed the alleged violations. any other? okay. we will take public comment on decision point 1-1 and 1-2. >> good evening, commissioners. i am richard nee, i am with the sunshine task force as you know is dormant. in decision 1.2, i would like, i am bit concerned you are using
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in paragraph "o" public records means records as defined in cpra 6252-e. i would instead that you use in your section 6.724. because it's broader in what it defines as a public record. and the sunshine ordinance overrides some exceptions. i think that the ordinance should be the authority here. thank you. >> david pilpel. speaking as an individual, and although i am a member the task force. but speaking as an individual. i would recommend with mr. nee's comment, though it's 64.20 in
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the ordinance. and with respect to item "p" referral. i think this can be tighten a bit, and reads initial document from the task force initiating a complaint. and perhaps tracking better to the language a referral from the task force alleging a violation of the sunshine ordinance. there could be any number of other documents from the task force that might initiate a complaint. but not necessarily a referral in the manner specified. thank you. >> i am not exactly responding to decision points. so 1-a or 1-b or whatever they are. i want to make a statement.
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this draft reverts to much of what the task force found problematic in staff's public draft. in the public hearing on task force referrals and the omission of enforcement of supervisor records of orders. many of the changes reflected in the submitted draft a year ago june, have been ignored with no explanation. i assume that the task force was going to review this. but since it's not going to. what we are going to find is that a group of individuals who have no previous -- not only association with these regulations, but experience on the task force. the current group has never heard a complaint.
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so their ability to deal with this is going to be hampered. and it would have been a lot better if staff had been courteous and explained why they concluded many provisions that don't belong in this document. and which we will now have to talk about on a case-by-case basis. and i am surprised that with only 10 days notice, when almost no one has a chance to look at this very carefully. you are going to push this through, really. you are going to push this through. and what we will end up is a set of regulations that will reflect mr. st. croix's unabated hostility to the task force and its work. thank you. >> peter warfield here.
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item 3 is listed on the agenda as consideration of draft amendments to the consideration of governing of the complaint of alleged violations of the sunshine ordinance and referrals of complaints from the sunshine ordinance task force. for those who have not read the paper copy of their own agenda. there is no indication on the paper copy that there are any documents whatsoever related to this agenda. and in fact i have in my chair next to me three documents that maybe related to this. and when you start talking about this section and that section, and decision points. are you talking about ethics commission regulations for complaints alleging violations of the sunshine ordinance? none of those words are in the agenda. or are you referring to another document called attachment "b" for regulations and enforcement
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proceedings. is that what are talking about? or my goodness is it this memo regarding sunshine ordinance complaints. it would be very helpful to everybody if you not only listed on the written agenda what the documents are that in question. but which ones are you talking about. so out of the dozens of pages we can find exactly what is discussed. i am sorry it's not easy when you leave all of that stuff to people at the last minute digging around through their documents. now with respect to public records. one of the difficulties i found routinely. i am not sure there is a solution that is easy certainly. and that is that the sunshine ordinance refers in various parts to information. and the best example i can imagine is for example the library commission meets and has
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for years on the first and third thursday of the month with small exceptions in the summer and winter. they set their schedule of meetings in december for the following year. if someone comes at the end of november and says, when is the january meeting of the library commission? there may not be any document that tells when it's going to be. but the practice [buzzer] and these people may want to make plans. there may be very clear information perhaps in the heads of everyone working on it. and in the history memory of people. they also skip the first january and go to the second. for example, or skip the second december meeting or old the first meeting. that is information that is not necessarily written on a public record. it could be stated that's likely to be passed.
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[buzzer] that's something that should be considered and referenced as nmen information in the sunshine ordinance. thank you. >> now i would like to reiterate the complaint or the observation of mr. warfield. and also the observation of mr. nee. because the sunshine law, 65.24 is far more clear than the public record section as defined in the state law. and i would like to point out that it says in section 67.36 of sunshine that, the ordinance supersedes all other local laws. this is the governing law of official conduct in san francisco. so if i go to the san francisco police department and i want to look at records of a case that
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is closed. i shouldn't have any problem from the san francisco police department saying no, we can't share any tape recordings with you. or we can't share any evidence that was collected both audio and video with you. where in fact if the case is closed, those are public records. specifically if i want to apply those to commissioner harris. this is important. and i am surprised you looking at me shocked. this is what you get if you spend 10 months on ross mirkarimi railroading him and 10 days trying to push this through. and it doesn't give us an idea of the information and i excuse me me mr. st. croix i was not able to read the documents of this meeting.
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but i wasn't able to read the minutes of mirkarimi hearing previous to those five through 10 or 12. anyway, thank you. >> hope johnson. i have two -- first i want to say it would, i understand it's been a long time that these have been, since these have been reviewed. but it would be nice if the task force cannot discuss these with each other. without having a meeting. because otherwise it's an illegal meeting. i would urge you to wait for them to have one meeting. so they could have one legal conversation about it. but in light of you not doing that, if you are not going to do that. my two comments on these are in section 2, item g, complaint. a task force referral it's a lot
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bit of mischaracterization to call that a complaint. it's a request for enforcement or a request for a show-cause hearing. not a complaint. it was a complaint when it was brought to the task force. that section also does not provide. i believe someone mentioned this, but i will say it again, it does not provide for someone who went to the supervisor of records first. that may come here as well. i am not sure how you want to handle those situations. if they may be considered a new complaint if brought here. but if the supervisor of records has already had some investigation, it may just be another show cause. and then in section n of that same section, item n, the mitigating information. the language that it uses it says, tending to excuse or reduce the culpability of the
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respondent's conduct. i feel there needs to be a little bit of explanation or something related to the idea that there may be an order, a referral that's requesting enforcement. and that enforcement they request might be production of documents. in which case there is no excuse or culpability in state or local law. it's associated with whether or not there is an exemption for the documents. because they are all public recor records. but you don't have to produce them if they fall under an exemption. there is not an excuse or doesn't mitigate that. it doesn't seem to capture the people that want information of
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records that they wanted. as opposed to a fine or finding some allegation legit mitt. -- legitimate. >> i have a quick question, on the supervisor of records, is there something you suggest is included or changed to address the situation that you were describin describing? >> i do think, i do think there is something in the draft that the prior task force submitted. but -- and i can look at it and make a suggestion in a minute. but i am not exactly sure how -- my hesitation is i am not sure how the supervisor of records referral would come to you.
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6735. does the supervisor of records make referrals to the ethics commission? can someone go to them? or would they have to come to the task force? do you know this answer? >> (inaudible). >> why don't you come up here a second. i couldn't hear you. >> david pillpel. determination of the supervisor of record are not automatically forwarded to the commission or task force. someone may bring an allegation of violation to the task force. that can result in a referral or file with them with a violation of ordinance. but supervisor of records do not go anywhere.
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>> neither do task force recommendations. >> right, but they have send a referral here. >> the supervisor of records once they make a determination. if someone filed a complaint, the person would have to go through the full investigation again? >> i think i understand your point. >> i may be able to look at it and formulate something and say it at a later time. >> and i realize that i may be opening a pandora's box to do something more than we can handle tonight. it could be that there are some elements that could be added later. but that we could move the things that we are doing that as to which the commission thinks are acceptable after hearing public comment. and return to add specific situations that may not be addressed here.
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so i appreciate the input but it does remind me that some of these may be more complicated than we can handle in this format. and wouldn't do violence on our acting before us that we are eager to have. excuse me. >> that's quite all right. you are done. >> yes. patrick shaw, i take exception on this first decision point. with definition section 2, m and n and p. regarding m and n, both exscopatory information and mitigating information suggest people of ordinary and average intelligence that you are
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fishing for a way to get the respondent off the hook through an investigation of some sort. when sunshine cases are referred to for enforcement. you are not supposed to conducting a new, brand-new investigation. even your new process here. that you have haven't adopted yet. it says it's up to the respondent to offer, i mean to meet the burden of proof. since they did not violate the sunshine ordinance. presumably by citing a violation or state or local law that permits at the time that they did so. i suggest you take m and n out completely. your role is not to help the respondent mitigate or expullicate their behavior.
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and set another quasi-judicial body. and i believe i am correct, mr. grossman will correct me if i am wrong. the sunshine task force is a quasi-judicial body. they have already conducted their investigation. you shouldn't be redoing their work. as to p, the definition reads, referral is a written document from the task force to the commission initiating an ethics commission complaint. that's not what the process is. when the task force forwards you a matter for enforcement, it's for enforcement of a complaint previously heard at the task force. it is not initiating a brand-new complaint [buzzer] with the etc.
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-- ethics commission. you need to rework the wording of 2-p before you adopt it. >> good evening, bruce wolf. two commissionary studley's question. we went over this in the april meeting. it was clear in the ordinance that there are two ways, pathways that the task force can ask for enforcement. one is through the willful failure misconduct path. and the other path it can choose any other appropriate entity, city agency or what have you, to provide enforcement. but to your additional question with regards to supervisor of records, in 6721-d, it states
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that the -- if the custodian refuses or failed to comply, the supervisor of record shall notify the district of attorney or general to be sure they ensure compliance with the provisions of the ordinance. it's a shall. and specific only to public records disclosure. that's in the ordinance and has been in the ordinance. but the task force, that's for the supervisor of records. for the task force it has the additional ability to take it to any other body that would be appropriate. thank you. >> david pellpal. i already spoke, and i want to point out there are two items "l" in the definition. thanks. >> good for you.
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>> good catch. >> hi, i am alison washburn, i am a league of women hold over on the task force and attended the april joint meeting with you. i would like to reiterate something that patrick said. i also take issue with "p." and the characterization of our referrals. in reviewing this document last evening, what stuck out for me most of all, was the absence of any clear idea about what would happen with our referrals to you for enforcement. a lot of the matters that come before us, yes, there may be violations of the ordinance. for whatever reasons they may be
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willful or egregious or not. what a member of the public wants and what we want to see the member of public obtain is public records. so we become very frustrated during the process where we find a violation. we issue an order of determination to produce the records. the matter is sent to the commit that i have chaired. compliance and amendments. and often the respondent doesn't show up at all. and then we send the matter back to the full task force for determination of what to do. again the respondent doesn't show up. we often don't have a clear idea why the record wasn't produced. so our recourse has been to send the matter to you for enforcement, for production of the record. and so there a lot in here
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about, yes, having a choe -- show cause hearing and looking for reasons for information. the bottom line for the complainant and us is that the public records that the public has every right to obtain are produced. and so i think the regulations should be clear in addressing this most usual, i would say, type of matter we would send to you. where we just want your help. to get this information. regardless of why it wasn't produced. because often we don't know. thank you. >> okay. i think there were some good points raised by the public. i think let's take them in
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chronological order than order of presentation. section g, the complaints. i understand the concern, we are not saying that a task force referral is meant to suggest that there is no, that this is just merely a complaint. as if it were initiated by the commission. however, i do some concern. i know that complaint is relied upon throughout the document. if we change the definition, i think we could do some, wreak some unintended havoc on the rest of the document. and substantively i don't think it makes a difference there. when we get to referral, we can deal with it in that section. the other issue, the supervisor
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of records. staff or mr. shin, you have thoughts on that? >> i believe that someone did reference the provision that seems to principlely address what the supervisor of records does. 6721-d. and i don't see, when they described basically what a provision does. i don't see anything in regulation that precludes the supervisor of record of carrying out what the sunshine ordinance provides. so it doesn't interfere with that provision of the sunshine ordinance. i don't know if staff has a different view on it. >> so the supervisor of record is what they are mandated to do, to send to the district attorney


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